December 6, 2021

IN RE ANNESSA J. (AC 44405) (AC 44497)

July 2021

Termination of Parental Rights, Post-Termination Visitation


Parents filed separate appeals from the judgment terminating their parental rights with respect to their minor child, and denying their motions for post-termination visitation with her.  The Court here held that Mother could not prevail on her unpreserved claims that the trial court violated her state and federal constitutional rights during the termination proceedings.

First, the Court found that Mother could not prevail on her claims that the trial court violated her rights under Article 5, § 1, and Article 1, § 10, of the Connecticut Constitution by conducting the proceedings to terminate her parental rights over the Microsoft Teams platform, as well as her right to due process of law by denying her motion for permission to allow her expert witness to review certain information and conduct an independent evaluation.  The Court found that her claims were unpreserved and evidentiary, not of constitutional magnitude, i.e. she failed to establish that there exists a fundamental right under our state constitution to an in-person, in-court termination of parental rights trial.  Moreover, the Court here found that the trial court did not deny her the use of an expert, but merely denied her late motion for release of confidential records, and for permission to conduct an independent evaluation on the eve of trial.  Accordingly, this Court found the claims were not reviewable under the second prong of State v. Golding (213 Conn. 233).

Additionally, the Court found that Mother could not prevail on her unpreserved claim that the trial court violated her right to due process under the Fourteenth Amendment by precluding her from confronting witnesses in-person, by conducting the TPR proceedings over the Microsoft Teams platform.  Although Mother requested an in-person, in-court trial, she did not argue on appeal that she had an absolute right to an in-person, in-court trial where she could physically confront witnesses, even if there was evidence of a need for a remote trial.  Rather, she contended that there was no evidence as to the need for a remote trial, and, because she did not ask the court to hold an evidentiary hearing on the need for such a trial, the record was not adequate to review the claim; the claim failed under the first prong of Golding.

Third, the Court found that the trial court did not err in terminating Father’s parental rights with respect to his child.  It declined to review Father’s claim that the trial court erred in concluding that DCF made reasonable efforts to reunite him with his child, as that claim was moot; the trial court also found that he was unable or unwilling to benefit from reunification efforts and, as Father failed to challenge that independent basis for the court’s finding that DCF made reasonable efforts to reunite him with his child, this Court held that it could not afford him any practical relief.

Further, this Court found that the trial court’s finding that Father had failed to achieve a sufficient degree of personal rehabilitation was supported by clear and convincing evidence in the record.  Although he had made some progress, there was evidence showing that he was reluctant to cooperate with DCF and had taken more than two years to begin addressing his problematic sexual behavior toward the child, which was still a problem at the time of trial; thus, the record supported the conclusion that Father could not assume a role as a safe and responsible parent within a reasonable period of time.

Furthermore, this Court found that the trial court’s determination that the termination of Father’s parental rights was in the best interest of the child was not clearly erroneous, as it was supported by the court’s findings and conclusions with respect to the 7 applicable statutory (§ 17a-112 (k)) factors, as well as the court’s conclusion regarding the child’s need for permanency and stability.  Although she expressed a desire to stay in contact with her father, she also wanted to remain in the care of her foster mother, with whom she had been living for more than two years.  Father had failed to address the problem sexual behavior that was a significant factor in the child’s removal, and had failed to make sufficient efforts to adjust his circumstances, such that he could assume the role of the caregiver.

Most significantly, though, this Court found that trial court DID err in denying the motions of the parents for post-termination visitation with the child, having failed to consider the appropriate standard under the applicable statute (§ 46b-121 (b) (1)) and our Supreme Court’s holding in In re Ava W. (336 Conn. 545).  In deciding the motions, the trial court was required to take a broad view of the best interest of the child, including considering the factors set forth in In re Ava W., such as the child’s wishes, the birth parent’s expressed interest, the frequency and quality of visitation between the child and the birth parent prior to termination of the parent’s parental rights, the strength of the emotional bond between the child and the birth parent, and any impact on adoption prospects for the child, to determine whether post-termination visitation was necessary or appropriate to secure the welfare, protection, proper care and suitable support of the child.  Accordingly, the case was remanded for further proceedings on the parents’ post-termination motions for visitation.